Posted
by
timothy
on Wednesday August 26, 2009 @05:22PM
from the just-like-the-beginning-of-the-dark-knight dept.

An anonymous reader writes "Last week Slashdot posted on the Flickr censorship case where Flickr removed the controversial Obama/Joker image from their site. A representative from Flickr claimed that they only removed the image because they received a DMCA takedown notice over the image and then accused the press and blogosphere of being 'makey uppey,' subsequently locking the thread where Flickr users were complaining about the takedown. But now it appears that Time, DC Comics, and the photographer of the original photograph used to make the parody image are all denying having issued Flickr a takedown notice. Flickr was asked who issued the notice by the Los Angeles Times and told the Times that they were not able to provide that information. The original artist says Flickr has not told him who filed it either, despite the fact that Yahoo has in the past provided the information to people when DMCA takedown requests are issued. So if Time didn't file the DMCA notice, and DC Comics didn't file the DMCA notice, and the original photographer did not file the DMCA notice, then who exactly did?"

The most likely answer is that Flickr, like television media, is left-leaning. The management probably felt offended by the image against their favorite man, yanked it off the site, and then made-up a story about a DMCA notice that doesn't exist. I wonder if we could file a Freedom of Information (sp?) request to discover who issued the notice.

If not I say we upload it. Again and again and again. Then sue Flickr is they ban your account, so they have to stand before a judge and explain themselves.

Unless the government claims they hold the copyright to the image, and they themselves issued the takedown notice, they're not going to have any information about it, therefore nothing can be obtained through a FOIA request.

And, if they did issue the takedown notice, they're not admitting it. Therefore, again, nothing can be obtained through a FOIA request.

Actually, Flickr is a government contractor and has exclusive content the government releases. A FOI request might actually work here. Of course it would have to be worded to include connections to government services they offer OR perhaps a statement concerning how the removal of the image was or was not connected to the government services they offer.

Yes, I'm sure Flickr has a full-time staff of people whose job it is to sift through random photos all day long, looking for ones that fall under several categories of things to get politically upset about, e.g.:

Yes, I'm sure Flickr has a full-time staff of people whose job it is to sift through random photos all day long, looking for ones that fall under several categories of things to get politically upset about

Of course your statement is absurd. Plenty such images are on Flickr.

But the image taken down was very well known at the time, having got a ton of press and being bandied as proof of some kind of racism.

It doesn't take a "staff of people" in that case, it takes one vigilante at Flickr deciding to take matters into his (or her) own hands and hide behind the shield of the near-unversally reviled DMCA, figuring the real rights holders would want it that way... only they didn't. Oops.

The management probably felt offended by the image against their favorite man, yanked it off the site, and then made-up a story about a DMCA notice that doesn't exist.

OK. So do you have any evidence of this? If not, why should we lend this statement any credence: "The most likely answer is that Flickr, like television media, is left-leaning."? If you are allowed to create evidence out of your preconceptions, you can argue that most television media are satanist.

his satellites deliver TV programs in five continents, all but dominating Britain, Italy, and wide swaths of Asia and the Middle East. He publishes 175 newspapers, including the New York Post and The Times of London. In the U.S., he owns the Twentieth Century Fox Studio, Fox Network, and 35 TV stations that reach more than 40% of the country...His cable channels include fast-growing Fox News, and 19 regional sports channels. In all, as many as one in five American homes at any given time will be tuned into a show News Corp. either produced or delivered.

Murdoch's global corporations pay an average of 6% corporation tax [bbc.co.uk]. Wikipedia's tax rates around the world [wikipedia.org] should tell you that there's something odd about this. Murdoch even had a special tax credit for himself written into a US bill during the Clinton era [independent.co.uk]. In the UK it was revealed that News International pays only 1.2% tax, and the governing Labour party refused to say anything on the issue [independent.co.uk]. It is worrying that, in a democratic society, any single individual can influence public opinion so convincingly that even the governing left-leaning politicians, who would be his traditional enemies, must do underhand deals in order to gain his support and stay in power.

Uhm, you do realise that most of the mainstream media in the US is own by Rupert Murdoch, and other wealthy Republicans?

Not even close to true. He doesn't own ABC, CBS, or NBC. He does own Fox, one of four major networks. On cable, you have Fox News owned by Murdoch (very Republican-oriented, granted), CNN owned by Ted Turner (debatable), but the rest of the news channels aren't close to right-leaning in general. For newspapers, he owns the WSJ, which is the only prominent right-leaning paper, with the Washington Post and New York Times being the two most prominent newspapers in the country. They also happen to be *extremely* left.

So your big Republican conspiracy is 1 out of 4 major networks, one or two major cable news channels, and one major newspaper. That's a lot more than those that are clearly left-leaning. The network news tends to skew left, as do newspapers in major cities.

Put it in perspective: in the other half of the world (the middle east+some of southeast asia+africa+oceania-australia) we would be considered the most extreme leftists. That would put us right in the middle of all of you.

It is. Virtually everything the military buys originated in a competitive bidding process amongst many corporations. The equipment comes from several thousand companies.

The only reason why the Army fights wars, rather than corporations, is the same reason why we have monopolies in electrical service or phone service - it's a natural monopoly where having multiple providers is not practical.

You are correct it is not left leaning, it leans in favor of Democrat politicians, in particular those that favor greater government control over the economy. Polls have repeatedly shown that those who work in the news media overwhelming self-identify as Democrats and as liberals.

I thought that after this last campaign cycle, nobody with open eyes would doubt the bias of the majority of major press outlets. Their behavior was just pathetic. Although, to be fair, I don't believe it's strictly a Democratic bias; a lot of it was just self-serving shallow groupthink. It tends to benefit the Dems more, but occasionally benefits the Reps (like after 9/11).

So if Time didn't file the DMCA notice, and DC Comics didn't file the DMCA notice, and the original photographer did not file the DMCA notice, then who exactly did?"

Mabye it was Barack Obama?

You're probably joking (as we're running out of possibilities) but might I remind you of Hustler Magazine Vs Jerry Falwell [wikipedia.org]? In which Falwell was considered a public figure [wikipedia.org] and in a "unanimous 8-0 decision (Justice Kennedy took no part in the consideration or decision of the case), that the First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them." I'm no lawyer but I heavily doubt that the DMCA would make th

The problem with option 3 is that the DMCA exempts them from legal action if they disclose who filed the take down notice to the person and gives them a change to file a counter claim (as the DMCA also spells out).

They are actuallly puting themselves at a greater legal risk by not disclosing who did it.

Large companies are the enemy of freedom of speech, it's a long-standing fact of life. It's ironic that the wild popularity of electronic media outlets such as Flickr and Youtube is because it took publication rights out of the control of big media outlets. But when these little independent things become big corporations, and lose site of what got them where they are, it's a good indication they deserve to be killed by their competition.

It was me. But I did it by accident. I thought I was clicking the Digg It link and must have just missed and clicked the DMCA It link. I did think it was weird that they asked me to provide justification for why I thought it should be expunged. But I just kept typing "The quick brown fox jumped over the...etc..." till it said I had typed enough and then it let me submit.

(f) Misrepresentations. - Any person who knowingly materially misrepresents under this section -
* (1) that material or activity is infringing, or
* (2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

I thought that in order for a DMCA takedown to be valid (that is, for the ISP to gain immunity to legal action by the user) the complete notice had to be provided to the user against whom the takedown was performed? Am I mistaken?

It doesn't matter if the notice is valid if the host fears the issuers lawyers more than the poster. That's one of the worst parts of the act: it encourages hosts to assume infringement solely on the basis of one accusation.

Er.. Technically it doesn't "encourage" hosts to assume infringement so much as it -requires- hosts to assume the legitimacy of the takedown notice. If they fail to, they lose immunity. That's why the notice gets promptly forwarded to the user against whom the takedown is perform and its also why the user gets to send a "put back" notice which -requires- the host to restore the removed material until such a time as ordered to remove it by a court.

Should be modded informative. Service providers wanting to maintain safe harbor immunity have to take something down if they recieve a DMCA. Section 512 of the DMCA [chillingeffects.org]. It has some cool caveats, though such as:

(f) Misrepresentations. - Any person who knowingly materially misrepresents under this section -
* (1) that material or activity is infringing, or
* (2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

There's a problem with this, though. When you respond with a put-back notice you're required to give your name and address. If you're trying to remain anonymous you're effectively silenced. Effectively this means that if I see something I don't like, it's posted anonymously, and I know the poster wants to remain anonymous and will never file a put back, I can simply send a false DMCA claim and make the information go poof. Cults love the DMCA.

the complete notice had to be provided to the user against whom the takedown was performed

Was, most likely, met. If there was a DMCA takedown issued (and that is speculative at this point) it would have been issued against Flickr, not the artist. After all the image was being hosted by Flickr, not the artist.

That assumes that DMCA was applied in this case. There is no solid evidence to support a DMCA notice having been served.

Indeed, the earlier evidence suggests that DMCA was not applied.

Flickr would have had to pass the information on to the user in order to be immune from damages of the content being removed.

I suspect that may depend on the TOS for Flickr. It is possible for Flickr to have a TOS agreement that says they are not liable for any loss of profit any customer may face as a result of images hosted there.

As it stands now, Flickr is not immune from potential lawsuits over the removal of the image

Again, it depends on several factors that we don't have information on.

The user is guaranteed a right to file a counter claim (under the law)

> I thought that in order for a DMCA takedown to be valid (that is, for the ISP to gain immunity to legal action by the user) the complete notice had to be provided to the user against whom the takedown was performed? Am I mistaken?

Well, yes. They're *supposed* to provide the person with a copy of it so that they have the opportunity to file a Counter Notice and restore the allegedly infringing works. However, a service provider always has the option of accepting even defective notices and removing the

legally you are correct but remember that flickr, google etc. have a history of assuming a DMCA takedown is valid before checking the actual validity of the notice to save themselves.

They are required to treat the DMCA takedown notice as valid to remain within the safe harbor provision of the DMCA; they are likewise required to forward the notice to the person who posted the allegedly-infringing material, who is entitled to file a counter-notice.

They are required to treat the DMCA takedown notice as valid to remain within the safe harbor provision of the DMCA; they are likewise required to forward the notice to the person who posted the allegedly-infringing material, who is entitled to file a counter-notice.

Technically this is correct. In real life, however, it tends to go like this:

- DMCA notice is sent to ISP or website
- ISP or website immediately takes down the material, no questions asked
- Any claims by the DMCA victim that the material

Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material

So even if the notification isn't valid, they're still required to take it down if they believe the content to be infringing.
See the actual text [chillingeffects.org] at (c)(1)(a)(i-iii). If they don't comply, they lose safe harbor status and it's open season on them. The law, not Flikr, is the one to blame here. Websites either have to comply with the DMCA or open themselves up to be held liable for the actions of each a

Not really. If they believed the joker image to be infringing, then they would have had to delete the other time magazine and DC comic photos that are still on their site today.

That's where it fails for them horribly. If they believed it to be infringing, they would have had to apply the same reasoning to all of their other files hosted. They didn't do that as there are still tons of Joker images and Time covers on the site and presented by people other then Time.

They are required to honor DMCA takedown notices that are valid in form.

They can and should throw out the obviously bullshit ones.

Not within the safe harbor, they can't. In order to remain within the DMCA safe harbor, they must honor any takedown notice that complies substantially with the requirements of 17 USC Sec. 512(c)(3)(A) (see also 17 USC Sec. 512(c)(3)(B), and Sec. 512(c)(1)(C)) which deal strictly with what the notice has to say. Now,

Since all you need is an e-mail, wasn't it just a matter of time before someone without the right to issue a DMCA notice issued one to take down a politically inconvenient image?

We have courts and paperwork for a reason in similar cases outside of the internet, and that reason is it's impossible to trust some letter you received. Just like you don't send DR AMHED JAFAR OF NIGERIA with your personal information, a rational legal system wouldn't allow just anyone to send an e-mail based DMCA takedown notice.

But this is what happens when the you let the content industry write their own laws.

> Since all you need is an e-mail, wasn't it just a matter of time before someone without> the right to issue a DMCA notice issued one to take down a politically inconvenient image?

The scenario you describe will happen, probably HAS happened. But in that case they would provide the email they received to the user. No, they took it down on their own for one or all of the following:

1. Pure political activism on the part of someone at Flickr/Yahoo. Remember Citizen, Dissent is Patriotic... unless Democrats are in charge then you must Doublethink; To Question the State is Treason.

2. Simple risk aversion. Fear that as word of where the subversive, treasonous art originated that their reputation would be tainted.

3. Avoiding the traffic spike when half the blogs on the planet linked to them.

"Democrats are in charge then you must Doublethink; To Question the State is Treason."

From the/.FAQ on "troll" moderation: "comment intended to provoke indignant (or just confused) responses. A Troll might mix up vital facts or otherwise distort reality, to make other readers react with helpful "corrections." Trolling is the online equivalent of intentionally dialing wrong numbers just to waste other people's time."

That exact bit up there is 100% guaranteed to have people remind you about all the doublethi

Yeah, I still remember the first time I realized someone was using the phrase "open minded" to mean "holding a specific set of 'open mind'-approved beliefs". It was no different than religious dogmatism but less honest about the fact.

Funny, I thought that was proper politics. Oh right, under "evil Republican administrations" debate and criticism were met with cries of being "unpatriotic", "anti-american", and protests were corraled into "free speech zones" and impromptu prisons.

Yeah, sure am glad that Democrats wouldn't do the same thing [usatoday.com].

Uhh, no offense, but I think some college student removing a picture from flickr is a bit different than labeling people "un-American" for opposing a war that turned out to be bullshit and killed tens (if not hundreds) of thousands of people.

That being said, the image shouldn't be removed. Free speech and all that good stuff. But with that in mind, I still think the people who do this and the Hitler stuff are tools who have no idea what they are talking about.

When's the last time you've heard of someone being prosecuted for that?

I think the wording is such that if you can convincingly claim you believed you had the right to issue the request, you can't be punished. So, e.g., if someone else told you that they owned the copyright, and requested you to make a DMCA takedown notice, you would be off the hook. And the law doesn't cover them making the request of you. So they're also off the hook.

i seen that ObamaJoker pic all over the intertubes so taking it off Flicker is about like removing the poster from one telephone pole when it is all over town and not able to do anything about it = lame and futile effort

Dude, you linked your own post as though it was a source. And I clicked it, too. Silly me.

Since I'm in this far let me just say that your own partisan conjecture doesn't seem to carry any more weight than any other kind of partisan conjecture. TFA points out that none of the copyright holders filed a complaint, probably because this is obviously parody and there would be no standing, so what would Flickr be protecting themselves against?

Dude, you linked your own post as though it was a source. And I clicked it, too. Silly me.

In that post, I provided a source. I linked to an interview with the artist who created the original poster - if you know of a more recent interview with him feel free to provide it.

Since I'm in this far let me just say that your own partisan conjecture doesn't seem to carry any more weight than any other kind of partisan conjecture.

First, I disagree with your labeling my sourced statement as "partisan conjecture". The statement I made and linked to, that I stand behind, was not partisan in nature. It referenced what was known at the time and shared by the artist. I have seen nothing more recent since then that actually includes statements from the ar

If nothing else this proves how easily it can be abused to stifle people's legitimate first amendment rights. With such a high profile case, I can see Joe Public starting to become concerned about this issue.

As a member of the military, this much is obvious: This is par for the course in government mandated ignorance and anti-intellectualism. Anyone who spends a significant amount of time working in the military can tell you that this kind of crap is shoveled on to us by the truckload. What's even more amazing is that there's a significant body of people who will believe anything they're told simply because they're dependent on the system. Be afraid.

But now someone is claiming DMCA - and only providing a link to a discussion forum to back it up? If there is no acknowledgment from Flickr of a DMCA notice having been issued, then why are we speculating on this? Last week they cited "copyright concerns" (read the LA Times article that actually interviewed the artist [latimes.com] to see what they told him) and never mentioned DMCA - why is it there suddenly?

* Flickr took down the whole page. The DMCA complaint was about a single image on the page. This would seem to be far from the most focused means Flickr has at its disposal to respond to DMCA complaints. Is this its typical response?

* The person whose page was taken down *should* have gotten the DMCA notice from Flickr. It *should* have included the identity of the complainant. Either a) the DMCA notification was not properly made, or b) folks haven't gotten the answer from the poster. Either option i

What they parties denying any DMCA takedown notices aren't saying is that they didn't threaten any potential action under the DMCA. It is just as likely that Flickr was responding to a threat of a DMCA takedown notice. If this is the case, then no one is telling any lies except for Flickr... and even in that case it's not a complete lie. But they do need to tell precisely who demanded that the material be removed or else they will lose in the public opinion of them.

What they parties denying any DMCA takedown notices aren't saying is that they didn't threaten any potential action under the DMCA. It is just as likely that Flickr was responding to a threat of a DMCA takedown notice. If this is the case, then no one is telling any lies except for Flickr... and even in that case it's not a complete lie. But they do need to tell precisely who demanded that the material be removed or else they will lose in the public opinion of them.

You can't threaten with a DMCA takedown notice. A DMCA takedown notice is absolutely no problem for an ISP, all they have to do is check whether all the necessary elements are there (what material is allegedly copied, where can the copy be found, who is the copyright owner, who is its agent, how can the agent be contacted), take down the material, send a copy of the request to the person uploading the material, that's it. How would that be threatening?

I should just ignore you and let the mods put your post down where it belongs, but you missed the obvious. When a DCMA take down notice is issued, it is customary (and some have even suggested legally required) to inform the person whose work has been taken down why it was taken down. They have to be told who issued the request and on what grounds the request was issued. Just because the artist "was told his images were removed due to copyright concerns" isn't enough. Whose copyright was being violated?

Yes, they need to tell the user who posted the material, but last I checked the Times isn't the one who posted it! The user who had their image deleted would most likely need to be the one to demand to see the notice and the name of the submitter.

This story provides no clear evidence of a DMCA take down notice having been issued. The closest it comes to that is referring to a discussion on Flickr.com. The last time we heard from the original artist to the best of my knowledge was in the interview that I provided a link to earlier.

Last week, Flickr only said they took down the image due to "copyright concerns". They did not say whose copyright they were concerned about; and considering the prevalence of the image over the past couple months thi

should just ignore you and let the mods put your post down where it belongs, but you missed the obvious. When a DCMA take down notice is issued, it is customary (and some have even suggested legally required) to inform the person whose work has been taken down why it was taken down.

It is not legally required to honor a takedown notice, to provide information about the notice to a subscriber, or to honor a counter-notice, but there is a legal shield from liability for hosting infringing content provided by

i didn't say it was well directed, effective, or good satire, but clearly it wasn't a violation of copyright, even as ridiculously overpowered as copyright is today.

but if i were to look for meaning in that image, perhaps it means to say, "you voted for me, the joke's on you." or, since the maker is a Palestinian Dennis Kucinich supporter, "you thought you were getting a progressive, well instead i'm as insane as the last guy."

on a side note, it's amusing how many on the left decided it *had* to have been